Long v. Long , 2014 Ohio 5715 ( 2014 )

[Cite as Long v. Long, 2014-Ohio-5715.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
BRIAN K. LONG, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 13 BE 28
V. )
) OPINION
LESLIE E. LONG, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas, Domestic Relations Division of
Belmont County, Ohio
Case No. 05DR0066
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Brian K. Long, Pro-se
110 Tierra Road
Wheeling, WV 26003
For Defendant-Appellant Leslie E. Long, Pro-se
65340 Three Hills Dr.
Bellaire, Ohio 43906
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Dated: December 23, 2014
[Cite as Long v. Long, 2014-Ohio-5715.]
DONOFRIO, J.
{¶1} Defendant-appellant, Leslie Long, appeals from a Belmont County
Common Pleas Court judgment denying her motion for a retroactive reduction in child
support.
{¶2} Appellant and plaintiff-appellee, Brian Long, were married in 1990. Two
children were born of the marriage, Tyler (d.o.b. 11/25/93) and Courtney (d.o.b.
11/6/96).
{¶3} Appellee was shot in 2004. In 2005, appellant pleaded guilty to
appellee’s attempted murder. Appellant was sentenced to nine years in prison.
{¶4} The parties divorced that same year. At the time, both parties were
represented by counsel. By agreement, appellee was named the residential parent
of the children. The magistrate had to make a determination as to how much income
to impute to appellant for child support purposes. The magistrate noted that
appellant had a bachelor’s degree and a master’s degree, but she had not been in
the workforce during the marriage. The magistrate noted that minimum wage would
be $9,012.50 annually for a 35-hour-per-week job. But, based on appellant’s
education, the magistrate imputed a yearly income of $30,000. Accordingly, the
magistrate imposed a monthly child support obligation of $425.55 on appellant.
{¶5} Appellant filed objections to the magistrate’s decision, arguing in part
that the magistrate should have only imputed minimum wage to her. The trial court
overruled the objections and set appellant’s child support obligation at $425.55 per
month.
{¶6} Appellant pursued an administrative adjustment of her child support
obligation through the Belmont County Child Support Enforcement Agency (CSEA),
but the adjustment was denied.
{¶7} Appellant’s child support obligation for Tyler terminated in May 2012,
when he graduated from high school. Appellant’s monthly obligation for Courtney
continued at $209.24.
{¶8} On June 20, 2013, appellant, now acting pro se, filed a Motion to Adjust
Arrearages. She asked the trial court to order CSEA to adjust the arrearages she
-2-
owed citing the amendments to R.C. 3119.05(I)(2) under Senate Bill 337’s “Second
Chance Act.”
{¶9} The magistrate found that appellant failed to offer any case law to
support the assertion that her arrearage could be adjusted. Therefore, the magistrate
overruled appellant’s motion.
{¶10} Appellant filed objections to the magistrate’s decision. She argued the
amendment to R.C. 3119.05(I)(2) supported her request to modify her arrearage so
that she would have only had a monthly obligation of $50 while she was incarcerated.
{¶11} The trial court overruled appellant’s objections finding there was no
basis for a retroactive reduction of child support in R.C. 3119.05.
{¶12} Appellant filed a timely notice of appeal on September 30, 2013.
{¶13} Appellant, still proceeding pro se, raises a single assignment of error
that states:
THE COURT ERRED AS A MATTER OF LAW IN NOT
ADJUSTING THE CHILD SUPPORT ARREARAGES OF APPELLANT
LESLIE LONG, WHEN THE IMPUTED INCOME USED WAS AN
AMOUNT FAR ABOVE WHAT APPELLANT WAS EARNING AT THE
TIME OF THE ORIGINAL COMPUTATION OF THE CHILD SUPPORT
ORDER.
{¶14} Appellant argues that when the trial court put on the support order in
the divorce decree it failed to consider several things. First, while appellant does
have a college degree, she never had employment in her field. Instead, she was a
stay-at-home mother for the five years preceding her incarceration. Second, she was
convicted of a serious felony and, therefore, would not be earning any significant
income for some time. Appellant argues the court should have only imputed the
minimum wage in effect at the time of the divorce, which she states was $5.15 per
hour.
{¶15} Appellant’s argument to this court is barred by the doctrine of res
-3-
judicata. The doctrine of res judicata bars the litigation of issues that were previously
raised or could have been previously raised. National Amusements, Inc. v. City of
Springdale, 53 Ohio St.3d 60, 62, 558 N.E.2d 1178 (1990). An argument asserting
the trial court erred in failing to consider certain factors in imputing income should
have been raised in a direct appeal from the divorce decree. See, Cramblett v.
Cramblett, 7th Dist. No. 05 HA 581, 2006-Ohio-415, ¶36. Appellant did not file an
appeal from the divorce decree. Thus, she is now barred from asserting alleged
errors with the divorce decree.
{¶16} In her motion for a retroactive reduction in her child support arrearage
appellant argued that pursuant to the amended version of R.C. 3119.05(I)(2) the
court should grant her request to modify her arrearage so that she would have had a
monthly obligation of $50 while she was incarcerated. In the interest of fairness, we
will address this issue.
{¶17} Am.Sub.S.B. 337 amended or enacted over 70 sections of Ohio’s
Revised Code. The changes became effective on September 28, 2012. One of the
sections it amended was R.C. 3119.05, which is entitled Requirements When Court
Computes Child Support. R.C. 3119.05(I)(2) now provides:
(I) Unless it would be unjust or inappropriate and therefore not in
the best interests of the child, a court or agency shall not determine a
parent to be voluntarily unemployed or underemployed and shall not
impute income to that parent if either of the following conditions exist:
***
(2) The parent is incarcerated or institutionalized for a period of
twelve months or more with no other available assets, unless the parent
is incarcerated for an offense relating to the abuse or neglect of a child
who is the subject of the support order or an offense under Title XXIX of
the Revised Code when the obligee or a child who is the subject of the
support order is a victim of the offense.
-4-
Prior to the 2012 amendment, R.C. 3119.05(I) did not include subsection (I)(2). So
there was no provision prohibiting a court from finding a parent voluntarily
unemployed or underemployed while they were incarcerated.
{¶18} At the time the trial court entered the divorce decree, the Legislature
had not yet amended R.C. 3119.05. Therefore, the court was free to find appellant
was voluntarily unemployed and impute income to her accordingly.
{¶19} Furthermore, there is no indication in the statute that it is to be applied
retroactively, which would allow appellant to pursue a retroactive reduction in her
arrearage. “A statute is presumed to be prospective in its operation unless expressly
made retrospective.” R.C. 1.48. The amendment of a statute does not affect the
prior operation of the statute or affect “any validation, cure, right, privilege, obligation,
or liability previously acquired, accrued, accorded, or incurred thereunder.” R.C.
1.58(A)(1)(2). Moreover, a court is to review the calculation and award of support
based on the statute in effect at the time of the filing of the divorce. Marek v. Marek,
9th Dist. No. 21886, 2004-Ohio-5556, ¶13.
{¶20} Thus, the trial court properly overruled appellant’s motion for retroactive
modification of her child support arrearage.
{¶21} Accordingly, appellant’s sole assignment of error is without merit.
{¶22} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Vukovich, J., concurs.
Waite, J., concurs.